Lara Giddings, MP
Premier
Wednesday, 24 August 2011
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Libs have short memories over Gunns permits
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Premier Lara Giddings today said the Liberals had displayed an embarrassingly short memory in their latest attempt to mislead Tasmanians.
�The State Government did act in 2009 to amend the Pulp Mill Assessment Act** to address the issues raised by the EPA,� Ms Giddings said.
�The Opposition actually supported the amendment so it ridiculous for them now to suggest that we did not act on the issue.
�It shows just how desperate they are to score political points.
�The question of whether substantial commencement has been achieved is now one for the relevant agencies and authorities responsible for the pulp mill permit.
�Ultimately, it may have to be decided in the courts,� Ms Giddings said.
**Please see Hansard below of second reading speech (Thursday November 5, 2009):
PULP MILL ASSESSMENT AMENDMENT (CLARIFICATION) BILL 2009 (No. 102)
Second Reading
Quorum formed.
[3.40 p.m.]
Mr LLEWELLYN (Lyons - Minister for Planning - 2R) - Madam Deputy Speaker, I move -
That the bill be now read the second time.
The Pulp Mill Assessment Amendment (Clarification) Bill 2009 provides certainty about the date on which the pulp mill permit lapses should Gunns Limited have failed to substantially commence the development and operation of a bleached kraft pulp mill in northern Tasmania.
On 30 April 2007 the Pulp Mill Assessment Act 2007 received royal assent. The act established a stand-alone process for the assessment of the proposal by Gunns Limited for the development and operation of a pulp mill in northern Tasmania, resulting in the pulp mill permit being prepared by the Minister for Planning. On 30 August 2007 the pulp mill permit was approved by both Houses of Parliament and came into effect. At the time of passing the act it was not considered necessary for the Pulp Mill Assessment Act to contain a date at which the permit would cease to exist had the project not substantially commenced. Nor was it considered necessary to specifically address provisions relating to the expiration of permits, licences or other approvals contained in other acts that may apply to the pulp mill permit.
On 20 October 2009 the Director of the Environment Protection Authority, Mr Warren Jones, wrote to the Secretary of the Department of Primary Industries, Parks, Water and Environment advising that, on the basis of advice that he had received from the Solicitor-General, uncertainty had arisen.
Mr McKim - Can you provide a copy of that legal advice to the House, please, Minister?
Mr LLEWELLYN - Legal advice?
Mr McKim - Yes, from the Solicitor-General to Mr Jones.
Mr LLEWELLYN - I can provide the letter that I think Mr Jones wrote to my department secretary.
Mr McKim - I would like the advice, please.
Mr LLEWELLYN - The uncertainty arose as a result of the potential expiry of schedules LU1, LU2, LU3 and LU4 of Appendix 2A to the pulp mill permit, which are, by virtue of section 8(1)(c) of the Pulp Mill Assessment Act, taken to be permits issued under the Land Use Planning and Approvals Act 1993.
Under section 53(5) of Land Use Planning and Approvals Act a permit expires two years after it was issued unless the relevant planning authority has granted an extension of the permit; or there has been substantial commencement of the activity. There are differing legal views about the application of section 53(5) of LUPAA to schedules LU1-LU4 of the pulp mill permit. If section 53(5) of LUPAA is taken to apply, there is also some doubt as to whether Gunns has 'substantially commenced' the use or development in respect of which the permit was issued, being the pulp mill, when the term 'substantially commenced' is given its strict legal construction in the context of that act. This is despite the fact that the proponent has spent considerable sums of money related to satisfying permit conditions and preparing for development.
The lapsing of the permit is, therefore, a matter that can only be conclusively resolved by a court or by legislation. Without such a determination being made by a court, or legislation being passed by both Houses of this Parliament, the director of the EPA and all other regulators will remain uncertain of the status of the pulp mill permit. The consequence of the director of the EPA's advice to Government is that there is now doubt over the current status of the pulp mill permit that needs to be resolved.
The proposed Pulp Mill Assessment Amendment (Clarification) Bill 2009 provides that the entire pulp mill permit lapses if the project is not substantially commenced before the end of the period of four years from the pulp mill permit coming into force; that is by 30 August 2011. The bill also sets aside the operation of provisions relating to lapsing of pulp mill permit conditions contained in section 53(5) of the LUPAA and section 159(8) of the Water Management Act 1999 and deems permits that may have lapsed under those acts not to have lapsed. This ensures that it is only the new date of lapsing imposed by this bill, being four years from the approval of the pulp mill permit, that applies.
The amendment of the Pulp Mill Assessment Act means that regulators can be certain that, should Gunns not have substantially commenced the project by 30 August 2011, the pulp mill permit lapses and Gunns' authority to build and operate the pulp mill is extinguished. Four years is considered a reasonable period of time given the size and considerable complexity of the project and lapsing provisions in other legislation. Provisions contained in LUPAA, if found to apply, would allow up to four years for the use or development to have substantially commenced for a permit to remain on foot, whilst the Water Management Act allows up to five years for a dam to be substantially completed for the permit to remain on foot.
The director of the EPA has identified that legal uncertainty regarding the lapse of approvals contained in the pulp mill permit has caused doubt about the current status of the permit that needs to be resolved. The uncertainty has arisen as a result of the Pulp Mill Assessment Act not explicitly dealing with the time frame in which the pulp mill permit lapses and the project not proceeding as fast as originally envisaged. The bill provides a single date at which the pulp mill permit lapses should the project not have substantially commenced, providing the certainty sought by the director. I commend the bill to the House.
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Further information: Tasmanian Government Communications Unit
Phone: (03) 6233 6573
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